Law of desire
The U.S. Supreme Court's precedents suggest that banning same-sex marriage is unconstitutional.

By Paul Reidinger

THE LAW, like the Matterhorn, is avalanche country, a place where long periods of motionless accumulation are punctuated by bursts of spectacular release. For the better part of a generation, the social and political controversies of same-sex marriage have been gathering on high peaks, vivid and visible but somehow not quite real: the Defense of Marriage Act, signed in 1996 by President Bill Clinton, the Vermont civil unions act of 2000, litigations in Hawaii and Massachusetts, a pair of small states at the edges of things.

But until recently, the big states and big cities had been largely quiescent, and the U.S. Supreme Court had carefully steered away from issues homosexual since its noxious and much criticized decision in Bowers v. Hardwick, the 1986 ruling in which a bare majority of the justices held that the states were empowered to make homosexual acts criminal. DOMA, among other things, has never been subjected to a constitutional challenge, despite its obvious vulnerability.

At the moment we find ourselves in the midst of a dramatic, coast-to-coast avalanche – wildfire is apparently the metaphor preferred by Christian conservatives, perhaps for some obscure biblical reason – of same-sex marriage, from New Paltz, N.Y., to San Francisco. Avalanches are notorious for being set off by a single shock – a blast from a stick of dynamite, say, or the decision of a dynamic mayor to start issuing marriage licenses to same-sex couples in apparent disregard of state law. They're also known for not being stoppable: once an avalanche starts, it will run its course. Wise judges realize this.

As we scan the present avalanche, we note that the dynamiter appears to be Mayor Gavin Newsom. His Valentine's-week decision to start issuing same-sex marriage licenses has, among other things, called into question the constitutionality of a state statute, enacted in 1977 and amended by referendum in 2000, that restricts marriage in California to "a man and a woman" and, further, prohibits the state from recognizing same-sex marriages performed in other states. On March 11 the city sued the state in Superior Court for a declaratory judgment that these provisions of the Family Code violate the state constitution's equal-protection clause. In Massachusetts, meanwhile, same-sex marriage becomes legal in May, per the order of that state's Supreme Judicial Court. The states, so far, are very much living up to their venerable role as laboratories of democracy. But we all know the issue of same-sex marriage – including the constitutionality of DOMA and a bundle of federal taxation and inheritance issues – is bound for the U.S. Supreme Court. It is there that the matter of same-sex marriage will eventually be resolved, and it was there – suddenly, last summer – that the same sex-marriage avalanche really began, with a case called Lawrence v. Texas.

Lawrence (decided by a 6-3 vote June 26, 2003) turned on facts quite similar to those in Bowers v. Hardwick: private, consensual homosexual acts prohibited by state law and accidentally observed by police officers, who made some arrests and started a lawsuit that ended up, several courts later, in Washington, D.C. The Supreme Court invalidated the Texas law but also went further by explicitly overruling Bowers – the significance of which was not lost on dissenting Justice Antonin Scalia, who presciently complained that the ruling "leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples." Indeed it does. For the rationale, if that is the word, of Bowers was one of moral disapproval of homosexuality (Justice Byron White dismissed as "facetious" the claim that private homosexual acts might be entitled to some constitutional protection), and by overruling Bowers, the Lawrence Court essentially, and preemptively, eviscerated the chief argument against same-sex marriage: that lots of people think it's wrong. As Justice John Paul Stevens, dissenting in Bowers, put it: "the fact that a governing majority ... has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice...."

It's far from clear today, actually, that lots of people do think homosexuality and its incidents are immoral, but Lawrence stands for the proposition that majority notions of morality and immorality are no longer automatically enough to trump the rights of individuals to conduct their private lives as they see fit – even if that means entering a civil union with, or marrying someone of, the same sex. Lawrence signals to lower courts, federal and state alike, that the various state and federal laws against same-sex unions, including the relevant provisions of California's Family Code and the dreadful DOMA, will have to be shown to serve a substantial governmental interest and will no longer be accepted as constitutional just because they codify established practice, a big, if unacknowledged, part of which is about keeping queers in their (second-class) place. That is one steep hill to climb.

Bay Guardian senior culture editor Paul Reidinger is a lawyer who has written frequently on constitutional issues since 1986.

March 17, 2004